Scottish Court of Session Decisions

Subject_1 ASSIGNATION.
Subject_2 Intimation by what equivalents suppliable.

Thomas Guthrie
v.
Sornbeg

Date: 18 November 1664
Case No. No 65.

Infeftmeut in a second wadset conveying the reversion of a first, found to be equivalent, to the registration of a formal assignation to the reversion, and to supercede the necessity of intimation.

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Guthrie pursues Sornbeg, alleging, That there being a first wadset of the lands of Thriplandhill, and certain tenements in Edinburgh, to Alexander Veitch, or his authors; and a second wadset of the lands of Thriplandhill, granted to the pursuer's father; and by a posterior contract, the pursuer's father's wadset was confirmed, and a certain sum added thereto; and for both, some tenements in Edinburgh were disponed with this provision, That Guthrie should possess thereby, and should be accountable for what was more than his annualrent; and Sornbeg having redeemed the first wadset, and taking a renunciation thereof, and having right to the reversion of the whole, entered to the possession of the tenements in the town; whereupon Guthrie craves that Sornbeg may compt and reckon for the mails and duties uplifted by him, and possess him in time coming, to the hail mails and duties, aye and while he be paid off his principal sum and annualrents, or satisfied by intromission.—The defender alleged, 1mo, That he having the right of reversion, though posterior, yet having first redeemed and made use thereof; his right of reversion by his disposition being in effect an assignation to the reversion; and Guthrie's second wadset being a prior assignation to the reversion; the second assignation, with the first diligence or intimation, must prefer the defender.

This the Lords repelled, and found no necessity of an intimation or diligence to consummate Guthrie's right to the reversion of the first wadset; seeing Guthrie was infeft by his second infeftment, which was equivalent to the registrating of a formal assignation to the reversion.

2do, The defender alleged, That being singular successor, and having redeemed the first wadset, which is now extinct, he possesses by an irredeemable right, and so must have the benefit of a possessory judgment.

The Lords repelled this defence, seeing seven years possession was not alleged.

3tio, The defender alleged absolvitor from the bygone mails and duties, before intenting of this cause; because, albeit he had not possessed so long as to attain the benefit of a possessory judgment, which would defend him, not only for bygones, but in time coming, till his right were reduced; yet before citation, he was bona fide possessor, et fecit fructus consumptos suos, which the Lords found relevant.—4to, The defender alleged, That by the pursuer's contract he was to be countable for the superplus of the mails and duties of the lands, more than paid his annualrent; and now the defender coming in place of the heritor, the pursuer is countable to him for the superplus.—The pursuer answered, That albeit he was countable, he might detain those annualrents, and impute them in his principal sum.

The Lords having considered the contract, found the pursuer ought to be repossessed; but that he could not detain the superplus; but that he behoved to be countable yearly to the defender conform to the contract.

Stair, v. 1. p. 226.